Prepared by Terry Reed
OBE, JP, BA (Hons), MCSP, SRP, GradDipPhys
New Guidance Issued 7th August, 2015
In specified circumstances, section 22(4) of the Gender Recognition Act 2004 permits the disclosure of what would otherwise be “protected information” about an individual who has applied for a Gender Recognition Certificate.
The effect of section 22(4)(e) is that “protected information” may be disclosed “for the purposes of proceedings before a court or tribunal.” The facts of the individual cases in which the disclosure question will arise are likely to vary widely. In some instances it will be relevant to the issues to know that an individual has a trans gender history.
In others it will be entirely irrelevant. Disclosure should not permitted in those cases where it is unnecessary and irrelevant to the issues. There is a need for judges to be aware of and astute to the issues.
James Munby P (President of the Family Division)
Download guidance document
This document provides information that is mainly designed to help trans parents who are experiencing difficulties in maintaining contact with their children and who are, therefore, seeking a Contact Order through the family court.
The first principle of the Children Act 1989 is that the child’s welfare is paramount. It is usually regarded as in the child’s best interests to have a relationship with both parents.
Divorce proceedings to end a marriage, or proceedings to end a Civil Partnership, are heard by a Judge in the County Court. Orders relating to the children of the marriage or Civil Partnership are usually dealt with at the same time. The County Court will usually keep jurisdiction in any case involving children, in respect of whom it has already made an Order. However, if no such Orders are made at that time, and disputes arise at a later date in relation to the children, these matters, as well as matters relating to the children of parents who are not in a legally recognised relationship, may be dealt with in either the County Court or the Magistrates’ Court (Family Proceedings). The relevant legislation is contained in The Children Act 1989 (CA 1989).
The principle that the child’s welfare is paramount has to be balanced against Article 8 of the Human Rights Act (HRA) which gives greater rights to parents. This was enacted on October 2nd 2000 and reflects European Human Rights legislation. Basically, UK law has to be interpreted, if at all possible, in such a way that it is compliant with European Law. If such an interpretation proves impossible, the government is under an obligation to change our law so that it is compliant. Article 8 of the Act states:
Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
Transgender experiences – Information and support
Although this enhances the rights of trans parents, Article 8 is a ”Qualified Right“, not an ”Absolute Right“, therefore, it would be possible, for instance, for the legal representative of a hostile and uncomprehending mother, to use the argument that it was necessary ”for the protection of health or morals“ (of the child) to refuse contact with the natural father (trans woman). This would not be right or just, but you need aware that such arguments might be made, and be ready to counter them when they arise, possibly by bringing expert opinion to bear. This might be in order to outline the innate biological nature of the condition, which could be supported with a helpful NHS leaflet “Transgender Experiences“, and also to reassure the court regarding the effect, on a child, of having a trans parent.
The most frequently sought orders
Standard of proof
Confidentiality: Human Rights and the Gender Recognition Act 2004
Who may be a ‘party’ to a case
Delay in family courts
The ‘no order’ principle
CAFCASS – Children and family court advisory and support service
What does Parental Responsibility mean?
Parental Responsibility Orders
The effect of the Gender Recognition Act on Parental Responsibility
Parents’ rights regarding the treatment of a gender variant child
Special Guardianship Orders
The Welfare Check List (WCL)
Presumption of involvement of both parents
Mediation Information Assessment Meetings
Child Arrangements Order (see and spend time with the child)
Continuing dispute between parties regarding contact with a relevant child
Proof of paternity
Calling an ‘expert witness’
The court hearing
Final Child Arrangements Order
Family Assistance Orders (FAO, Children Act 1989)
Child Arrangements Orders (Living Arrangements)
Public Family Law